(Resolution of the Supreme Court dated 29 April 2026, Case No. 27 Cdo 3463/2024)
In this decision, the Supreme Court considered whether the general meeting of a business corporation may retroactively approve remuneration for a member of its statutory body for the performance of their office where no agreement on the performance of office had been concluded for the relevant period.
In the case at hand, the general meeting of a European company adopted a resolution by written procedure on the payment of remuneration to a member of its management board for the performance of office during the period from 2012 to 2021. One of the shareholders sought a declaration that the resolution was invalid. The shareholder argued, among other things, that the management board member had not validly held office on the relevant date and could not retroactively be awarded remuneration for a period during which no agreement on the performance of office had been concluded.
The court of first instance dismissed the application in this respect. The appellate court, however, declared the general meeting’s resolution on the payment of the remuneration invalid. The appellate court proceeded on the basis that, where no agreement on the performance of office has been concluded, the member of the statutory body performs the office without remuneration. It therefore concluded that the general meeting could not subsequently approve remuneration for the performance of office in respect of past periods during which no agreement on the performance of office existed. According to the appellate court, the remuneration could not be regarded as another benefit within the meaning of the Business Corporations Act, because such a benefit cannot be provided “in addition to an agreement” where no agreement on the performance of office exists.
The Supreme Court disagreed with this conclusion. It held that, even under the legislation effective from 1 January 2014, the absence of an approved agreement on the performance of office means that a member of an elected body does not automatically acquire a right to remuneration. It does not, however, prevent the competent body of the business corporation from subsequently awarding such remuneration. The decisive requirement is that the benefit must be approved by the general meeting or, as applicable, another body competent to approve the agreement on the performance of office. This preserves the business corporation’s control over the remuneration of the members of its elected bodies.
According to the Supreme Court, there is therefore nothing to prevent the general meeting from awarding remuneration to a member of an elected body for a period preceding its decision, even where no approved agreement on the performance of office was in place during that period. The Supreme Court therefore set aside the appellate court’s decision to the extent that it declared invalid the general meeting’s resolution approving the payment of remuneration to a member of the board of directors and remitted the case to the appellate court for further proceedings.
The decision is particularly significant for the practice of remunerating members of statutory and other elected bodies of business corporations. It confirms that the absence of an approved agreement on the performance of office does not, in itself, preclude the retrospective award of remuneration for the performance of office, provided that such payment is approved by the general meeting or another competent body. At the same time, however, it emphasises that such a decision cannot replace the need for agreements on the performance of office to be properly and duly put in place, as such agreements remain the principal instrument for ensuring transparent remuneration of members of elected bodies.
Legal Update 07/2026 download here.